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Free press is the backbone of a healthy democracy, its practice is recognized and guaranteed under the fundamental right of free speech and expression[i]. It has the unique power of influencing the minds of masses through its impactful portrayal of facts on any given matter, as the proverb - Pen is mightier than the sword suggests. With the press attaining the popular status of 4th pillar of democracy, it becomes crucial to note that power is always followed by responsibility. Trial by media is the impact of newspaper and television coverage on the reputation of a person after or before a verdict in court. Far from the media's objective of keeping people informed, this insensitive phenomenon, in addition to being antithetical to the administration of justice, results in the infringement of the right to a fair trial. The coverage of the ongoing investigation surrounding actor Sushant Singh Rajput’s death has brought this contentious topic to the fore. This blog addresses the dichotomy between free speech and fair trial, seeking to draw a middle ground through the suggestion of appropriate rules to tackle trial by media.


Over the years, there have been many cases which have received widespread media coverage to the point that they have heavily influenced the judicial process. These cases are mostly of a heinous nature or revolve around persons who are in the public eye. One of the earliest examples of media trials in India was the Nanavati case[ii] which saw widespread coverage of a double homicide allegedly committed by a Naval officer. Other well known instances of trial by media are the Aarushi Talwar case , Sheena Bohra case etc. The commonality in these cases is that various news outlets, while reporting these cases, took on the role of a public court by indulging in sensationalism and distorting facts which influences public opinion thereby affecting the judicial proceedings which follow. Due to the intense scrutiny of the media in such cases, the judicial process might be burdened with the need to satisfy the public’s convictions which acts as a hindrance in conducting a fair and unbiased trial.

Though it could be argued that ideally, the judiciary acts independent of any frenzy created by the media, the adverse effects of such publication on the judicial process cannot be overlooked. Studies[iii] indicate that press coverage of crimes, especially capital crimes are generally worded in a negative tone, with phrases like ‘deadly sociopath’, ‘feared by own family’ etc. used to describe the individuals in a case. The problem lies in the fact that the press, instead of reporting the facts alone, include points that are incriminatory in nature such as previous criminal history that are not even considered as relevant facts or evidence during trial in the court[iv] .

The Constitution, under Article 19(1)(a), guarantees to the media freedom of speech and expression[v] subject to restrictions under Article 19(2) which includes fair administration of justice as protected under the Contempt of Courts Act, 1971. But when the media indulges in irresponsible sensationalization, it often infringes individual rights such as the right to representation, right to fair trial, right to privacy and right to dignity which are rights flowing from Article 21. This also hits at the core of the basic principle of criminal jurisprudence which considers an accused to be innocent until proven guilty. The practice is also not in conformity with the rights under international covenants such as UDHR[vi] and ICCPR[vii]. Even though freedom of expression is an essential right in a democracy, this collective right cannot be placed above the individual rights of persons.


The 200th Law Commission report[viii] suggested an amendment to the Contempt of Courts Act, 1971 that bars the media from reporting anything prejudicial to the rights of the accused in criminal proceedings, from the time of arrest to investigation and trial. For upholding rule of law and maintaining orderly society, both an independent judiciary and a free responsible press are indispensable and therefore both entail protection[ix]. It is recommended that appropriate rules that prohibit the reporting or publishing of any material fact that comments upon the guilt of an accused are framed. Taking such legislative steps would ensure that a balance is struck between the rights to a fair trial and an unimpeded freedom of press.

Sources: Indian Express & The Hindu


[i] Brij Bhushan v. State of Delhi, AIR 1950 SC 129 [ii] K.M. Nanavati v. State of Maharashtra, 1962 AIR 605 [iii] Bakhshay, Shirin,Haney, Craig The media’s impact on the right to a fair trial: A content analysis of pretrial publicity in capital cases, Psychology, Public Policy, and Law, Vol 24(3), 326-340, Aug 2018 [iv] S.54, Indian Evidence Act, 1872. [v] Express Newspapers v Union of India, AIR 1958 SC 578; Printers (Mysore) Ltd v. Asstt. Commercial Tax Officer,(1994) 2 SCC 434 [vi] Article 10, Universal Declaration on Human Rights, 1948 [vii] Article 14(1)(3), International Covenant on Civil and Political Rights, 1966 [viii] 2 Law Commission of India, 200th Report on Trial by Media Free Speech and Fair Trial under Criminal Procedure Code, 1973 (2006), [ix] Rajendra Sail v. Madhya Pradesh High Court Bar Association and Others, (2005) 6 SCC 109

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